A safe harbour from copyright infringement liability

If your business operates a website or even just a basic office network, a recent law change provides you with limited, but still useful, protection against some types of copyright liability.

The new section, 92B of the Copyright Act 1994, recently came into force. While the focus was on the “guilt by accusation” of section 92A (which has thankfully been suspended, pending a wider review) section 92B has quietly provided small businesses (as well as ISPs and other website and network operators) with a “safe harbour” protection for copyright infringement.

With Section 92B, if someone else uses your website or network to infringe copyright, then by default:

• You are deemed not to have infringed copyright;

• It must not be assumed that you authorised the infringement of copyright; and

• Unless a Court order is breached (for example, an order to remove certain content), you are safe from any criminal or civil action.

These rules are a fair recognition of the role of network and website providers – that they provide an online facility, venue or set functions (to their own employees or the public), yet often have little practical control over how users actually use (or misuse) their systems.

Importantly, even though the section refers to “ISPs”, the wide definition of “ISP” recently introduced into the Copyright Act means that section 92B protects all websites and other online services, including bricks-and-mortar businesses with simple LANs.

For example, section 92B will provide protection from civil or criminal liability in the following situations:

• If you run a business and one of your employees is using your office file server to host copyright-infringing material without your knowledge.

• If you run a web application and a user uploads copyright-infringing material, without your knowledge.

• If you run a website and a person uses it to send emails that infringe copyright, without your knowledge.

There are many other situations where section 92B will provide some comfort to website and network operators – perhaps not so much from actual liability, but at least from the threat of liability. It is one less issue for small businesses to worry about.

However, a common element of these examples is that the infringement must be “without knowledge” in order to gain protection. If a person uses your system to infringe copyright, that by itself does not make you liable.

If there is “something more” – such as if you intentionally enabled illegal activity – then section 92B may not protect you. The Act does not define what “more” would remove the protection of section 92B, and it is therefore up to the Courts to decide this over time. It is possible that this section will become the subject of much litigation.

However, if an operator had actual knowledge of specific, repeated instances of copyright infringement by an identified user over a long period, and took no action despite being requested to (which is to say the user “consented” to the act), then the operator could not rely on section 92B to avoid prosecution.

It therefore remains important for firms to have key safeguards in place, such as:

• Internal processes for handling IP complaints;

• Appropriate disclaimers and contractual provisions;

• An understanding of the issues of exercising any sort of “editorial control” over content; and

• Acceptable use policies for staff and other network users.

Section 92B does not remove all liability for copyright infringement from website and network operators. Though it does provide a clearer and more substantial level of protection to website and network operators than before, which better reflects the realities of providing networked services to staff and the public.

Hopefully, further changes likely to be made to the Copyright Act will not negate these benefits.

Burgess is a lawyer specialising in IT law at Clendons barristers and solicitors. He can be reached at guy.burgess@clendons.co.nz

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